by Christina Dixon, Esq., Aecus Law. and Megan Amanda Miller, Esq., Law Offices of Megan Amanda Miller
As external investigators, we often have our own ideas about what constitutes a prompt, thorough, and impartial investigation. At the same time, we are conducting investigations on behalf of employers with their own practices, methods, and expectations concerning the investigative process. And, unlike external investigators who can leave the investigation and its wake in their rearview mirror, employers will be tasked with handling the consequences of the investigations we externals conduct. These differences in expectations and practices can create problems in an investigation ranging from the merely irritating to the downright detrimental. To help bridge this gap, we asked internal HR experts and in-house counsel what external investigators could do to conduct more effective investigations. Our experts represent a broad spectrum of employers from the public and private sectors, educational institutions, and domestic and multinational organizations. Our experts have experience conducting internal investigations, acting as a liaison for external investigators, and/or determining what, if any, consequences would result from an external investigator’s findings.
This article summarizes their nuggets of wisdom and our own reflections on how these experts’ tips can be practically applied to the external investigator’s process.
Analysis and Credibility: Connect the Dots.
Our experts overwhelmingly lauded the importance of writing a good analysis. By “good analysis,” they meant connecting the dots so the reader can understand how the investigator reached their conclusions. For example, don’t simply rehash the evidence summary in the analysis and then conclude. Instead, interpret the evidence. Was there evidence supporting both sides and if so, which had more weight? Why was that so? If credibility is an important factor, as it so often is, conduct that analysis and know how to do so. Why did you find the complainant more or less credible than the respondent? What credibility factors did you consider and how did each come out? On a related note, organize the analysis and findings so they are easy to locate. Don’t force your reader to sift through disorganized data in order to locate your conclusions.
While a good analysis will connect the dots, an excellent one will also include information that helps the employer diagnose and prevent future problems, even if there was no policy violation. For example, did tension arise between the parties because of some ineffective workplace practice, poor communication, or overwork? Was information shared that might be helpful for understanding the parties’ reasons for engaging in any sustained conduct? This information will be helpful for the employer not only in determining whether a policy was violated but how it might improve its workplace culture and thereby prevent future conflicts.
Our experts also emphasized the importance of consulting with an internal expert when an external is tasked with writing policy findings and is not familiar with how the employer’s policies have been implemented in the past. In those cases, it may behoove the investigator to interview someone familiar with how the applicable policies have been implemented to ensure that the external’s own policy findings are consistent with the employer’s past application of that policy. Failing to do so means shooting in the relative dark and possibly having the findings conflict with the employer’s past interpretation of its own policies. Ouch. As a side note, many external investigators resist making policy findings for exactly this reason. If the employer asks for this, it can be wise to raise this concern with the employer. Discuss how to avoid the pitfall of inconsistent policy interpretation by an external and whether a suitable, unbiased expert is available to discuss how the policy has been applied. Explore with that expert what fact patterns or hypotheticals would or would not violate the applicable policy. Then, use that information to help guide your policy analysis.
Investigative Reports: Consider the Audience Investigation Scope.
While writing a clear analysis is good advice for any investigator, our experts also emphasized that externals should keep in mind both the reader and the purpose of the report when writing the analysis. In general, reports should include only relevant, non-extraneous information. The reader is often an executive or HR generalist who may not need or want to get into the weeds. In essence, less is more. As Mark Twain famously said, “I didn’t have time to write a short letter, so I wrote a long one instead.” Take the time you need to reflect on and condense the report to an appropriate length.
On the other hand, although many experts emphasized the need for brevity in report writing, some contexts may warrant presenting the analysis in greater detail. For example, if there is litigation anticipated, the client plans to use your report to show that it conducted an adequate investigation, they may want a detailed, thorough analysis to demonstrate this. In considering how to balance thoroughness with brevity, we imagined thinking of the analysis as a landscape one can view from different altitudes. For example, a busy executive may want the analysis from the 30,000 foot level. What features still show at that altitude? Be prepared to get into the weeds if asked, but you may not need to spell all of that out in the report. Ask the client early on about their needs and preferences concerning how much detail to include in the analysis.
Understand the Client’s Goals.
Many of our experts spoke of the need for investigators to clarify the goals of the investigation at the outset and “triage” the situation before plunging into a full scale investigation. This need is particularly strong when the client lacks an internal HR or people group leader to crystalize the company’s needs into directives that can be passed on to the external investigator. In situations like these, it’s critical to gain clarity on what the client needs or hopes to achieve with the investigation. Is a full-scale investigation with a formal report the desired output? Or would the client be better served by an Executive Summary that highlights the investigator’s findings and summarizes the evidence supporting the conclusion? Perhaps such advice seems to go without saying, as investigations are a service we provide to clients. Yet, external investigators too often launch a full-scale investigation and fail to ask whether that approach serves the client’s goals.
Even when the client is sophisticated, large, and employs a team of HR professionals that manage the various aspects of their employee relationships, asking for clear direction on the client’s desired output, work product and expectations remains high on the wish list for our experts. Several pointed out that because they have internal HR teams, some extensive and cross-jurisdictional, they only hire externals when the matter is highly complex or sensitive. As such, the written work product by external investigators might be an “Attorney’s Eyes Only” report or only reviewed by senior leadership. Once again, our experts emphasized the desire for reports that speak specifically to those executive and attorney audiences, i.e., are high-level, findings-driven reports written for executives.
A word on the dreaded “scope creep:” It happens. We know it. The clients understand it. Our expert’s advice on the topic: Constant communication. Confirming the scope in the engagement letter might be your standard practice, but what is your SOP when it comes to scope creep and work product? Our experts implored externals to check in when scope creep happens to discuss how the client wants to handle it in the written report. Whether you include the additional issues in the report depends, in large part, on how the client plans to use the report. As such, addressing these additional issues before incorporating them into the report was a key concern for our experts.
Tread Lightly and Consider Your Impact.
Our experts expressed a desire for externals to minimize the stress of the interview process on witnesses, who are often anxious about and unfamiliar with the interview process. To this end, they encouraged external investigators to minimize the need for follow up interviews so that witnesses can put the experience behind them as soon as possible. In our experience, this means preparing thoroughly in advance of each interview. For example, review the witness’s job description, reporting relationships and length of time in that position prior to the interview, so you know more about what that witness might be able to speak to in advance. Review all available documents that you believe the witness will or might be able to offer information about and have documents with you that you may need to show the witness. And consider whether there are any questions you might be able to ask the witness initially that would prevent the need for follow up later. Similarly, consider whether a follow-up interview is necessary. If the information you are trying to gather from the follow up interview would not likely change the findings, it may not be worth putting the witness through another interview, or charging the client for that additional expense for that matter. However, this is a delicate balance. Sometimes it is better to do that extra follow up interview for the sake of thoroughness and to help ensure that any undetected confirmation bias does not cause you to overlook or undervalue possible evidence.
One surprising source of witness stress involved externals’ demeanor with witnesses. Several participants encouraged external investigators not to “interrogate” witnesses and offered anecdotes in which an investigator engaged in a more combative style of questioning during the administrative interview, Law and Order style. One obvious drawback of such an approach is that it undermines the investigator’s perceived neutrality. Even if the investigator were to treat all witnesses and parties combatively, each participant could easily perceive the investigator as being “against” them and, by extension, “for” someone else. Such an investigation would surely not be perceived as neutral. A combative approach could also reflect actual bias by the investigator in that an investigator who is truly neutral does not need to argue. It is the neutral investigator’s role to remain open to each witnesses’ perspective, not to win an imagined fight with the witness. This is not a deposition. Nor is it an “interrogation,” even though that word is used to describe the interview process in some statutory contexts. Another more insidious disadvantage of the combative approach is that it increases the participants’ stress and dissatisfaction with the investigative process. Employers conduct investigations not only to resolve the issue at hand but to establish that the employer takes complaints seriously and will fairly and neutrally evaluate the complaint. When witnesses feel interrogated, they may also feel that they have not been heard. When they do not feel heard, they will likely feel unsatisfied with the experience and, by extension, will likely feel unsatisfied with the results.
On a related note, consider that witnesses may be concerned about anonymity, and such concerns can cause significant stress. Most investigators have heard the question, “Who else will know that I talked to you?” Or, “Will anyone get to see what I told you?” While it is fine to redirect the witness to an appropriate client contact, it is also good to know the answer to the witness’s question yourself. Ask the client upfront about confidentiality and its limits under their applicable procedures. Will the report be a public record? Does the respondent have a right to question the complainant, directly or indirectly? Must witnesses be anonymized or should they be? And ask the client whether they would like you to share that information with concerned witnesses or direct the witness to the client to answer such questions. Having such information in advance will not only help the investigator comply with the employer’s internal policies. It will help the investigator respond confidently and appropriately to a witness’s inevitable concerns and questions about confidentiality. While having a ready and accurate response may not eliminate the witnesses’ concerns, the investigator’s preparation may inspire confidence in the process overall and may communicate that the investigator cares about and has considered the impact of the interview process on the witness.
Set Communication Expectations.
Experts advised externals to balance the need for timely communication with not overwhelming the client with check-ins. Remember, they outsourced for a reason. There is likely an elevated need for both actual and perceived independence for this particular investigation. And HR or its outside counsel are likely busy with other matters. On the other hand, investigators should keep in mind the principles of constructive notice. If they are told about a workplace concern, the employer is on notice, by extension, of that concern. And the employer may need to take separate action about that concern or wish to fold that concern into the investigation’s existing scope. Our takeaway is this: Ask the employer upfront for their preferences on how the investigator should touch base on status. And identify a point person with whom the investigator can touch base about issues or concerns that arise during the investigation, including possible scope expansions. Similarly, determine in advance who the investigator will coordinate with regarding document requests and interviews. Having a plan upfront will go a long way to minimizing the need for procedural questions during the investigative process. Similarly, investigators should stay proactive in communicating about timing and delays to any estimated deliverables. Don’t wait until the day before the report deadline to tell the client that it will take another week.
Think Globally.
Some experts emphasized the importance of considering the diversity of the overall workforce in terms of both demographics and jurisdiction. For example, a multinational corporation may have complaints involving parties in different countries. Those parties may have different cultural and societal expectations regarding what conduct is appropriate in the workplace. And they may have or be subjected to different stereotypes based on race, gender, disability, or other protected status for example. Such differences may be important to include in a report to help provide context for the employer and explain possible causes for any sustained or perceived misconduct, such as differences in communication norms or expectations. Regarding choice of law, it may be wise in cases that may involve multiple jurisdictions to clarify with the client which laws apply and what if any impact that should have on the investigation. For example, the complainant may work in one jurisdiction and the respondent in another. And the employer may be incorporated in yet another jurisdiction. While the investigator does not make legal findings, they do consider the legal backdrop in making factual findings to facilitate the rendering of legal advice by an employer’s counsel. In potentially multi-jurisdictional cases, it is therefore important to consider whether this context effects how the investigation should be framed and what kinds of information may need to be gathered to help the employer’s counsel evaluate potential legal issues.
Conclusion
Following these experts’ advice can help external investigators conduct a more prompt, thorough and impartial investigation. Stick to the scope. Conduct an appropriately thorough analysis by connecting the dots and addressing credibility. Write for your audience. And share information helpful for diagnosing or responding to workplace issues. However, our experts also expressed a wish that externals would timely and proactively communicate, especially around scope and timing issues. They also wished that external investigators would consider the impact of the investigation on the workplace.
All of our experts’ feedback could be incorporated under one simple principle: Improve communication with the client. For example, ask the client upfront for clarifications on scope, points of contact, process for requesting documents and coordinating interviews, and desired frequency of check-ins. Confirm their expectations or needs regarding report form and content early on. And know their applicable policies and procedures, including those regarding confidentiality, the investigative process, and other factors impacting the well-being of witnesses during the investigation.
Communicating more frequently with the client may seem counter-intuitive to some external investigators, because many of us keep the client at arm’s length to maintain both actual and perceived independence. However, our experts’ responses show that this approach may backfire on all fronts. There are many appropriate reasons to communicate with the client during the investigation. Not only is communication with the client appropriate. It can also improve the client’s experience, improve the participants’ experience, and lead to a more prompt, thorough and impartial investigation overall.